California Western Law Review
Volume 36
Number 2 UCSD Civic Collaborative--Law, Legacies
and Public Policy
Article 13
2000
Strike One, Ready for More?: The Consequences
of Plea Bargaining "First Strike" Offenders under
California's "Three Strikes" Law
Tina M. Olson
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Recommended Citation
Olson, Tina M. (2000) "Strike One, Ready for More?: The Consequences of Plea Bargaining "First Strike" Offenders under California's
"Three Strikes" Law," California Western Law Review: Vol. 36: No. 2, Article 13.
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Olson: Strike One, Ready for More?: The Consequences of Plea Bargaining
STRIKE ONE, READY FOR MORE?: THE CONSEQUENCES OF
PLEA BARGAINING "FIRST STRIKE" OFFENDERS UNDER
CALIFORNIA'S "THREE STRIKES" LAW
INTRODUCTION
Twenty-one year old Alex Delgado did the unthinkable by refusing to
plead guilty when a prosecutor offered a three-year sentence for three counts
of armed robbery.' Delgado's rejection was not because he was innocent,
and it was not because he was waiting for a better deal. Instead, Delgado refused the deal because of the consequences associated with California's
"Three Strikes" law.2
To properly understand Delgado's decision, it is necessary to understand the ramifications of the "Three Strikes" law, as well as the exact terms
of the offered agreement. Under California's "Three Strikes" law, a mandatory sentence is imposed for repeat offenders.3 The first violent or serious
felony conviction is not subject to sentencing enhancements under this law
because that is deemed to be the first strike. However, if a defendant is convicted of a second violent or serious felony, the law mandates a double sentence for that conviction.4 This is then the second strike. If a defendant is
then convicted of a third violent or serious felony, he bears the greater sentence out of three options.' Those options include either; a tripled sentence, a
twenty-five year to life sentence, or an independent sentence by the court,
whichever is greater.6
In this case, the offered agreement from the Los Angeles prosecutor was
1.See Greg Krikorian, A Look Ahead: The Three Strikes Law has Shaped the Justice System in Many Ways, L.A. TIMES, Mar. 23, 1998, at BI.
2. See CAL. PENAL CODE §§ 667, 1170.12 (West 1999); see also BUREAU OF JUSTICE
STATISTICS, U.S. DEP'T OF JUSTICE, TRUTH IN SENTENCING IN STATE PRISONS, at 1 (1999)
[hereinafter TRUTH INSENTENCING].
3. See CAL. PENAL CODE §§ 667, 1170.12 (West 1999).
4. See id. The felony does not have to be a serious or violent felony before a criminal defendant receives a double sentence under the law. See id.
5. See CAL. PENAL CODE § 1192(c), as amended by 1999 Cal. Legis. Serv. Ch. 298 (A.B.
381) (West 1999); CAL. PENAL CODE §§ 667.5(c), 1170.12(a) (1999). Again, the felony conviction does not have to be serious or violent to qualify for a sentence under the 'Three
Strikes" law. Although the crime is not violent or serious, the sentence will still require a third
strike conviction unless the judge uses discretion to strike a prior offense. See People v. Superior Ct. (Romero), 917 P.2d 628 (Cal. 1996).
6. See CAL. PENAL CODE §§ 667(e)(2)(A)(i)-(iii), 1170.12(c)(2)(A)(i)-(iii) (West 1999).
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a three-year sentence in return for two guilty pleas of armed robbery
Delgado refused, and instead made a counteroffer where he would plead
guilty to one count of armed robbery and serve a six-year prison sentence.!
Surprisingly, the prosecutor rejected Delgado's counteroffer.'
Alec Henderson, Delgado's defense attorney, employed an unconventional strategy that opposes the predominant rationale for representing first
strike criminal defendants. ° Defense attorneys are generally required to obtain the most advantageous resolution for their clients. Fortunately, Alec
Henderson had a sound justification for apprising his client of the possible
future consequences of accepting the plea, namely the grave outcome of receiving two strikes. Henderson quickly realized the prosecutor was "setting
[Delgado] up for a fall."" On the other hand, the prosecutor's rationale for
rejecting Delgado's counteroffer is because2 of the severe sentences associated with California's 'Three Strikes" law.
Sadly, Delgado's case is in stark contrast to other California 'Three
Strikes" law cases. Delgado's case does not differ with respect to the charges
against him or the manner he used to accomplish his crime. Delgado's case
deviates from other similar cases because Delgado was prepared to remain
incarcerated for an additional three years in order to receive one less strike."'
The reason for this deviation is that Delgado realized the possible future
consequences of accepting the prosecutor's proposed plea agreement. 4 Henderson also rationalized the prosecutor's willingness to release Delgado from
prison earlier than usual. By granting Delgado an early release, the prosecutor may "put him away for the rest of his life if he commits another crime.""
Henderson realized that a "good deal" now is not a "good deal later," and by
7. See Krikorian, supra note 1.
8. See id.
9. See id. The majority of criminal defendants would not request an additional prison
term, and virtually every prosecutor would eagerly consent to a six-year term if their offer
required a three year sentence. See id. This is particularly true because prosecutors realize that
the majority of offenders incarcerated in prison will actually serve less time in prison than
what the defendant was sentenced to by the court. See Thutm IN SENTENCING, supra note 2.
10. See Krikorian, supra note 1. "First strike" defendants are defined as defendants that
receive their first strikable offense, without regard to whether it is violent or serious. See id.
11. Id.
12. See id.; see also CAL. PENAL CODE §§ 667, 1170.12 (West 1999).
13. See Krikorian, supra note 1.
14. See generally CAL. PENAL CODE §§ 667, 1170.12 (West 1999). The next felony conviction, serious or not, will result in a substantial sentence, without regard to whether it is
Delgado's first or second violent or serious felony conviction. The state's contention is that if
Delgado's strike is his second, then Delgado will be forced to serve a double sentence. However, if the next conviction is his third strike, the prosecutor gains a twenty-five year sentence.
See id.
15. Krikorian, supra note 1. See Keith C. Owens, California's"Three Strikes" Debacle:
A Volatile Mixture of Fear, Vengeance, and Demagoguery will Unravel the Criminal Justice
System and Bring California to its Knees, 25 SW. U. L. Rsv. 129, 153 (1995) (discussing
cases where the prosecutor charges individuals for stealing pizzas, denim pants, drug possession, robbery, joy riding, writing bad checks, and welfare fraud).
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granting Delgado an early release now, the likelihood of a twenty-five year
sentence in the future is substantially increased. 6
California's 'Three Strikes" law results in disparate treatment of criminal defendants because it allows first strike defendants to plea bargain
without requiring rehabilitation, but then severely punishes them if they
commit a new offense. Part I of this Comment discusses the law, and
how it emerged from the old habitual offender statutes. It also discusses
the historical aspects of the plea bargaining system and the anti-plea
bargaining clause contained in California's "Three Strikes" law. Part II
analyzes the ramifications of using plea bargaining under the 'Three
Strikes" law, and specifically the crime rate in those California counties
that over-utilize the law. This section will also analyze the unproportionate increase in plea-bargaining that occurred with the implementation of the law, and the future consequences of plea bargaining if the
law is ever repealed. Part III recommends that defendants cease plea
bargaining first strike offenses unless they receive appropriate rehabilitation. Finally, this Comment concludes by reemphasizing the negative
effects of plea bargaining under California's 'Three Strikes" law.
I. BACKGROUND
California's 'Three Strikes" law is not a modem concept in the battle
against alleviating criminal behavior. 7 Plea-bargaining, as well, is not a new
technique used to reduce a defendant's sentence." Both practices, however,
have reemerged in California's 'Three Strikes" law, and both negatively affect the criminal defendant, starting as early as the defendant's first strikable
offense. 9
A. A New Law from an Old Concept
California's 'Three Strikes" law is not a novel concept to the unresolved
issue of crime and punishment." Mike Reynolds initiated California's
'Three Strikes" law, after career criminal, Joe Davis, killed his daughter,
Kimber Reynolds." The legislature and the California voters persistently ignored Reynolds' attempts to pass the bill, until the murder of twelve-year16. See generally Marc Mauer, Politics, Crime Control and Baseball? "Three Strikes
and You're Out," 9 CRIM. JUST. 30 (1994).
17. See id.; see also Lauren L. Barr, The "Three Strikes" Dilemma: Crime Reduction at
Any Price?36 SANTA CLARA L. REv. 107, 118 (1995).
18. See Douglas D. Guidorizzi, Should We Really "Ban" Plea Bargaining?:The Core
Concerns of Plea BargainingCritics,47 EMORY L.J. 753, 757 (1998).
19. See CAL. PENAL CODE §§ 667(g), 1170.12(e) (West 1999).
20. See Thomas C. Castellano, Limits of the Criminal Sanction in Controlling Crime: A
Plea for Balanced Punishments, 23 S.ILL. U. L.J. 427, 435 (1999); Barr, supra note 17;
Mauer, supra note 16, at 30.
21. See Barr, supra note 17.
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old, Polly Klass.22 After learning of Klass's heinous murder, Reynolds' three
strikes bill gained public backing. With both Reynolds' and the public's insistence, legislators refocused on "lock 'em up" legislation to combat violent
crime." In March of 1994, California's "Three Strikes and You're Out" bill
was passed into law by the legislature.u California voters approved the law
by enacting Proposition 184 in November of that same yearY
Contrary to the public's perception, habitual offender statutes have existed since colonial times.26 As early as the 17"' century, both England and
colonial America passed criminal offender statutes imposing stringent penalties on offenders that persisted in committing similar criminal acts.27 These
statutes, however, were rarely employed because criminal offenders normally received capital punishment for their first offense.28 In 1797, New
York passed the first law mandating life sentences for habitual offenders that
committed dissimilar criminal violations.29 Many states followed suit, as
well as England, which enacted the "Habitual Criminal Law of 1869. " "3
Faced with tremendous public criticism, however, England had no alternative but to repeal the law in 1879 for being "unreasonable." 3 '
The United States also experienced disapproval, but unlike England, the
public inaccurately considered the habitual offender laws as an indispensable33
32
tool for unrehabilitated offenders. Throughout the Progressive movement,
22. See id.; Michael Vitiello, Three Strikes: Can We Return to Rationality? 87 J. CRIM.
& CRIMINOLOGY 395, 411 (1997). Ironically, Marc Klass first signed the proposed legislation,
but after learning that nonviolent criminals would be punished under the wide net of the
"Three Strikes" law, he ended up opposing it. See id.
23. See James Austin, "Three Strikes and You're Out": The Likely Consequences on the
Courts, Prisons, and Crime in California and Washington State, 14 ST. Louis U. PUB. L.
REV. 239, 239 (1994); Jody L. Sundt, Is there Room for Change?: A Review of Public Attitudes Toward Crime Control andAlternatives to Incarceration,23 S.ILL. U. L.J. 519, 522-23
(1998); Michael G. Turner et al.,
"Three Strikes and You're Out" Legislation:A NationalAssessment, 59 FED. PROBATION 16, 16 (1995); Vitiello, supra note 22, at 412.
24. See CAL. PENAL CODE §§ 667, 1170.12 (West 1999); Castellano, supra note 20, at
431.
25. See CAL. PENAL CODE § 667 (West 1999); Linda S. Beres & Thomas D. Griffith, Did
"Three Strikes" Cause the Recent Drop in CaliforniaCrime? An Analysis of the California
Attorney General'sReport, 32 Loy. L.A. L. REV. 101, 101 (1998); Barr, supra note 17, at 112
(stating the two laws are virtually identical, but with the California voters approving the law,
the only way to change the law is by a two-thirds vote by both houses).
26. See Ilene M. Shinbein, "Three-Strikes and You're Out": A Good PoliticalSlogan to
Reduce Crime, but a Failure in its Application, 22 NEW ENG. J. ON CRIM. & Civ.
CONFINEMENT 175, 179 (1996).
27. See id.
28. See Turner et al., supra note 23, at 17.
29. See id.
30. Id.
31. See id.; Owens, supra note 15.
32. See Turner et al., supra note 23, at 17. See generally Castellano, supra note 20.
33. See Turner et al., supra note 23, at 17. The Progressive movement resulted from
prominent leaders trying to change the laws to help rehabilitate offenders, instead of using
typical punishments like capital punishment and life sentences. See id.
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however, prominent leaders finally convinced the American public that these
laws ineffectively deter criminal behavior. Despite this commendable effort,
these laws flourished again during the Prohibition period of the 1920s.' Unfortunately, the movement allowed the courts to minimize the practice of applying mandatory sentences because judges determined the appropriate sentence based on an individualized sentencing scheme. 5
In 1926, New York passed another law, mandating a sentence of life
imprisonment for third time offenders. 6 Other states followed New York's
lead, and by 1949, forty-eight states enacted mandatory sentencing for repeat
offenders?7 The majority of states, realizing judicial discretion is necessary
in any criminal proceeding, did not require judges to impose mandatory sentences if circumstances compelled a different result.33 Unfortunately, judicial
discretion was removed in the 1970s, when legislators required judges to
impose sentences for repeat offenders, without regard to the particular individual. 9
Today, habitual offender statutes incarcerate a large percentage of repeat offenders, and the "Three Strikes" law is another attempt to punish
chronic offenders.' California began imposing life sentences on habitual offenders in 1986, but still enacted the harshest "Three Strikes" law in the
country.4 Twenty-three other states and the federal government have developed their own versions of the law, and at least eighteen of these states had
habitual offender statutes already in place. 2
The renewed interest in combating crime by using habitual offender
statutes is not a difficult concept. The California Supreme Court quoted the
Legislature, and pronounced the underlying policy behind California's
'Three Strikes" law. The law is "to ensure longer prison sentences and
greater punishment for those who commit a felony and have been previously
convicted of serious and/or violent felony offenses."' 3 Although this reason34. See id.; Lawerence M. Friedman, Dead Hands: Pastand Present in CriminalJustice
Policy, 27 CUMB. L. REv. 903, 910 (1996-97).
35. See Turner et al., supra note 23, at 17.
36. See id. (stating this law is the Baumes law).
37. See Shinbein, supra note 26; Turner et al., supra note 23, at 17.
38. See generally People v. Superior Ct. (Romero) 917 P.2d 628 (Cal. 1996); Shinbein,
supra note 26.
39. See Harvard Law Review Association, Changesin Prison and Crime Demographics,
111 HARV. L. REV. 1875, 1881 (1998) (by 1979, every state has some form of mandatory sentencing for certain types of offenses); Shinbein, supra note 26; TRuTH IN SENTENCING, supra
note 2. This lack of discretion for repeat offenders, or recidivists, directly resulted from mandatory sentencing, instead of indeterminate sentencing. See id.
40. See Austin, supra note 23, at 240; Turner et al., supra note 23, at 17.
41. See Christine Markel, A Swing and a Miss: California's "Three Strikes" Law, 17
WHrITIER L. REv. 651, 651-52 (1996).
42. See Harvard Law Review Association, supra note 39, at 1880; Turner et al., supra
note 23, at 17; Sundt, supra note 23 (finding 88% of a public sample from Cincinnati, Ohio
supported the 'Three Strikes" law). See generallyTRhuH INSENTENCING, supra note 2.
43. People v. Dotson, 16 Cal. 4th 547, 556 (1997).
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ing, on the surface, appears to adequately detail the strategy to eliminate re-
peat offenders, it fails to clearly explain the reason for using these laws when
habitual offender statutes are already in place."
Furthermore, the policy behind the "Three Strikes" law fails to clearly
define the scope of the law because numerous nonviolent offenders are included under the law's wide reach.45 The public, persuaded by their fear of
crime, demands that the criminal justice system incarcerate all repeat offend-
ers.' Proponents of the 'Three Strikes" bill, under the guise of Proposition
184, used this fear to implement the bill.47 In the published argument, propo-
nents of Proposition 184 stated, "[k]eep career criminals, who rape women,
molest innocent children and commit murder, behind bars where they belong."48 Ironically, the 'Three Strikes" law puts very few rapists, child molesters, and murderers behind bars.49 Instead, the law merely enables society
to institutionalize nonviolent offenders for a minimum of twenty-five years.'
B. HistoricalPerspectivesof Plea Bargaining
Plea-bargaining is presumed to have existed since the inception of crime
and punishment." The United States implemented plea-bargaining primarily
as a time saving device for disposing of criminal cases in the late nineteenth
and early twentieth centuries.' By the 1920s, plea-bargaining had evolved
into an accepted procedure throughout the court system.' Currently, settlement negotiations are a "routine" method for disposing of cases, especially
in the criminal justice system.'
44. See Turner et al., supra note 23, at 17.
45. See Harvard Law Review Association, supra note 39, at 1878; Mauer, supra note 16,
at 30.
46. See Mauer, supra note 16, at 30. Society fails, however, to take into account the individual's rehabilitation. See id.
47. See Michael Vitiello, Three Strikes and the Romero Case: The Supreme Court Restores Democracy, 30 Loy. L.A. RE'. 1643, 1675 (1997).
48. Id.
49. See Mauer, supra note 12, at 33 (stating that the violent criminals are already sentenced under other laws for long incarceration periods, so the only ones affected by three
strikes are nonviolent offenders).
50. See CAL. PENALCODE §§ 667(e)(2)(A)(i)-(iii), 1170.12(c)(2)(A)(i)-(iii) (West 1999).
51. See Josefina Figuerira-McDonough, Gender Differences in Informal Processing:A
Look at Charge Bargaining and Sentence Reduction in Washington, D.C., 22 CRiMm &
DELINQ. 101, 102 (1985); Guidorizzi, supra note 18.
52. See Douglas A. Smith, The Plea Bargaining Controversy, 77 J. CIwM. L. &
CRUMNOLOGY 949, 949 (1986); Guidorizzi, supra note 18.
53. See Guidorizzi, supra note 18, at 759.
54. See Albert A. Alshuler, Implementing the Criminal Defendant's Right to Trial: Alternatives to the Plea Bargaining System, 50 U. CHl. L. REV. 931, 934 (1983); BUREAU OF
JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, FELONY SENTENCES IN STATE COURTS, at 10
(1999) [hereinafter FELONY SENTENCES INSTATE COURTS] (stating that plea-bargaining accounts for 91% of the felony convictions in state courts and this rate has not changed from
1988 to 1996).
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Although plea agreements are a customary way of expediting criminal
cases, there is not a standard definition for plea-bargaining.55 Generally, pleabargaining is defined as:
[a]ny arrangement arrived at by negotiations between a defendant, either
with or without assistance of counsel, and the prosecuting attorney,
whereby a criminal charge or potential criminal charge is resolved in some
fashion other than by a trial on the merits, and either or both parties promise to do something or to refrain from doing something with respect to the
matter.56
This broad definition is required because plea negotiations vary in each
jurisdiction.' Even with these deviations, there are two main categories of
plea-bargaining; explicit plea-bargaining and implicit plea-bargaining. 8
Explicit plea-bargaining results when a criminal defendant negotiates
with the prosecutor to reduce charges or sentences." In exchange for a guilty
plea, the prosecutor has many options. The prosecutor may either apply
charge bargaining, which occurs when the original charges are reduced to
less serious charges; count bargaining, where collateral charges are dropped;
or sentencing bargaining, where the prosecutor assures the defendant a lenient sentence.' It should be noted, however, explicit plea-bargaining may
also include the prosecutor's agreement to recommend a sentence to the sentencing judge or to remain silent during sentencing.6
Implicit plea-bargaining occurs when the defendant and the prosecutor
55. Compare CAL. PENAL CODE § 1192(c), as amended by 1999 Cal. Legis. Serv. Ch.
298 (A.B. 381) (West 1999) defining plea-bargaining as "any bargaining, negotiation, or discussion between a criminal defendant or his or her attorney and the prosecuting attorney or
judge wherein the defendant agrees to plead guilty or nolo contendere in exchange for promises, commitments, concessions, assurances, or consideration by the prosecuting attorney or
judge regarding charging or sentencing."; with BLAcKs LAW DICnONARY 1152 (6e ed. 1990)
defining plea-bargaining as,
the process whereby the accused and the prosecutor in a criminal case work out a
mutually satisfactory disposition of the case subject to court approval. It usually
involves the defendant's pleading guilty to a lesser offense or to only one or some
of the counts of a multi-count indictment in return for a lighter sentence than that
possible for the graver charge."
Id.
56. 25 AM. JUR. Trials § 69 (1978 & Supp. 1998) (stating the range of possibilities for
resolution of criminal charges in the plea bargaining process is open-ended).
57. See id.
58. See Robert L. Misner, Recasting Prosecutorial Discretion, 86 J. CRIM. L. &
CRIMINOLOGY 717, 750 (1996).
59. See Dean J. Champion, Private Counsels and Public Defenders: A Look at Weak
Cases, PriorRecords, and Leniency in Plea Bargaining, 17 J. CRIM. JUST. 253, 253 (1989);
Richard S. Frase & Thomas Weigend, German Criminal Justice as a Guide to American Law
Reform: SimilarProblems,Better Solutions? 18 B.C. INT'L & COM. L. REv. 317, 344 (1995).
60. See Champion supranote 59; Frase & Weigend supra note 59.
61. See Misner, supra note 58. It should be noted that prosecutors are not restricted to
only these options. See id.
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bargain for concessions because the defendant realizes the likelihood of an
extremely unsympathetic sentence if the case goes to trial. 2 Judicial approval is not mandatory before a valid agreement occurs, and prosecutors
may dismiss charges in exchange for guilty pleas. 3 Implicit plea-bargaining
is fraught with difficulties because the prosecutor may manipulate the system by acting as a judicial officer.' With implicit plea-bargaining, many offenders receive the sentence that is appropriate for the prosecutor, but not for
the crime, or for that matter, the court.'
Settlement negotiations, involving the prosecutor and the defendant, either implicitly or explicitly, are widely accepted in the United States.6 Respectability of the plea-bargaining process has advanced considerably, despite a multitude of protests. 7 As discussed infra, these criticisms curtail
many negotiation practices, but have not, and probably will not, eliminate
plea-bargaining entirely. 8
Before discussing the criticisms of plea-bargaining, it is first necessary
to briefly comment on the advantages of plea negotiations. One primary advantage for the prosecutor is to procure a guilty plea when the strength of the
evidence is questionable. 9 The state also profits from these negotiations because the prosecutor saves time, expense, uncertainty, and maintains high
conviction rates." Alternatively, plea-bargaining benefits defendants because
they receive reduced sentences.7 Furthermore, pleading defendants assume
responsibility for their criminal behavior.' This is beneficial because pleading defendants are closer to reform than non-pleading defendants who defer
rehabilitation until the resolution of a trial.
As briefly mentioned above, objections stemming from the negotiation
62. See Guidorizzi, supra note 18, at 756.
63. See id.
64. See AM. JUR. Trials, supra note 56; Champion, supra note 59; FELONY SENTENcES IN
STATE COURTS, supra note 54, at 10.
65. See generally AM. JUR. Trials, supra note 56; Champion, supra note 59; FELONY
SENTENCES IN STATE COURTS, supra note 54; Figuerira-McDonough, supra note 51; Hunter
A. McCallister & Norman J. Bregman, Plea Bargainingby Defendants: A Decision Theory
Approach, 126 J. Soc. PSYCHOL. 105 (1985).
66. See Champion, supra note 59; Frase & Weigend, supra note 59.
67. See AM. JUR. Trials, supra note 56; Champion, supra note 59; FELONY SENTENCES IN
STATE COURTS, supra note 54, at 10; Figuerira-McDonough, supra note 51.
68. See RUTH MASTERS & CLIFF ROBERSON, INSIDE CRIMINOLOGY 15 (1990); AM. JUR.
Trials, supra note 56 (stating plea-bargaining is needed to curtail the large numbers of cases
in the criminal justice system); Figuerira-McDonough, supra note 51, at 103.
69. See Misner, supra note 58.
70. See MASTERS & ROBERSON, supra note 68; Smith, supra note 52, at 950.
71. See Smith, supra note 52, at 950-51.
72. See Gerard V. Bradley, PleaBargainingand the CriminalDefendant's Obligationto
PleadGuilty, 40 TEX. L. REv. 65, 70 (1999).
73. See id. This results because the plea bargaining defendants accept their punishment
soon after sentencing. Non-plea bargaining defendants continue to believe that rehabilitation
is unnecessary because the jury may find them not guilty of the charges against them. See id.
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process are abundant, but a few criticisms are worth detailing.74 First, there is
not a balancing of bargaining power. Prosecutors have considerably more
power in the bargaining process than the defendant." This unfair bargaining
power permits prosecutors to intrude on judicial functions.76 With successful
negotiations, the criminal justice system allows prosecutors to predetermine
the sentence a particular defendant receives." This is particularly unfair to
first strike defendants because they may not understand the criminal justice
system and would be unable to fully appreciate the consequences of pleading
guilty.
Second, plea negotiations allow practitioners to rapidly finish cases
without taking into account the defendant's best interest.78 These bargaining
practices become a daily habit for a large percentage of prosecutors and defense attorneys.' The ease of pleading defendants enables practitioners to
utilize the negotiation process as an initial mechanism, instead of a viable
option."
The last major criticism of plea-bargaining is the general notion of how
it enables offenders to receive lighter punishments in exchange for guilty
pleas.' The public, the primary advocate opposing negotiation agreements,
complains that criminal defendants "get away" with their criminal behavior.' Defendants are only receiving inconsequential sentences compared to
the sentence they would normally receive without plea-bargaining. 3 Critics
believe these criminal defendants do not receive their just punishment for the
crimes they commit.' The legislature, responding to this attack by the pub74. See id. at 75-76; Jennifer F. Reinganum, Plea Bargainingand ProsecutorialDiscretion, 78 AM. ECON. REv. 713,713 (1988); Alshuler, supra note 54.
75. See Wendy Kaminer, Games ProsecutorsPlay, AM. PROSPECT, Sept. 1, 1999, at 20;
Alshuler, supra note 54, at 933; Figuerira-McDonough, supra note 51 (stating that because
plea negotiations are conducted behind closed doors, defendants may be denied their due
process rights); Reinganum, supra note 74.
76. See Alshuler, supra note 54, at 933; Reinganum, supra note 74.
77. See Bradley, supra note 72, at 75-76.
78. See David Sisler, Plea Bargain, AUGUSTA CHRONICLE, Oct. 5, 1996, at 30; Alshuler,
supra note 54, at 933.
79. See AM. JuR. Trials,supra note 56; Alshuler, supra note 54.
80. See Aogan Mulcahy, The Justificationof "Justice": Legal Practitioners'Accounts of
Negotiated Case Settlements in Magistrates' Courts, 34 BRIT. J. CRIMINOLOGY, 411, 411
(1994); Alshuler, supra note 54; Figuerira-McDonough, supra note 51, at 103. A number of
legal practitioners believe trials are unnecessary because a significant percentage of defendants are "morally culpable and substantially guilty." Id. Prosecutors do not only share this
opinion, but it is a common assumption between defense attorneys as well. It is particularly
alarming if the court appoints an attorney with these viewpoints for the defendant because an
indigent defendant cannot afford to hire another attorney. See id.
81. See MASTERS & ROBERSON, supra note 68; Guidorizzi, supra note 18, at 768; Sisler,
supra note 78.
82. See Guidorizzi, supra note 18, at 768; Sisler, supra note 78.
83. See Jeff Brown, Politics and Plea Bargaining: Victims' Rights in Californiaby Candace McCoy, 45 HASTINGS L.J. 697, 699 (1994); Guidorizzi, supra note 18, at 768.
84. See Brown, supra note 83; Guidorizzi, supra note 18, at 768.
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lic, continues to make attempts at curbing the use of plea-bargaining." For
example, in 1982, the California voters approved Proposition 8, also known
as the "Victims Bill of Rights," yet plea-bargaining continues to thrive.86
C. The Enactment of California's"Three Strikes" Law and the Ban on
Plea-Bargaining
In March of 1994, the legislators passed into law California Penal Code
section 1170.12, which the California voters later validated by the passage of
California Penal Code section 667.' This Code section is now commonly
known as the "Three Strikes" law. As described earlier, these two virtually
identical laws require mandatory sentences for repeat offenders. 8 As previ-
ously mentioned, the first violent or serious felony conviction is not subject
to sentencing enhancements under this law because that is deemed to be the
first strike. However, if a defendant is convicted of a second violent or serious felony, the law mandates a double sentence for that conviction. 9 This is
then the second strike. If a defendant is then convicted of a third violent or
serious felony, he bears the greater sentence out of three options.' Those options include either; a tripled sentence, a twenty-five year to life sentence, or
an independent sentence by the court, whichever is greater.9
The most obscure, but significantly alarming, provision introduced in
California Penal Code sections 1170.12 and 667 is the anti-plea-bargaining
clause.' This clause limits the amount of prosecutorial plea bargaining in
85. See sources cited supra note 84.
86. CAL. PENAL CODE § 1192(c), as amended by 1999 Cal. Legis. Serv. Ch. 298 (A.B.
381) (West 1999); Steven V. Vartabedian, Enhancing Sentences with PriorFelony Convictions: The Limits of "Without Limitation," 23 PAc. L.J. 1051, 1052 (1992); Brown, supra
note 83; Shinbein, supra note 26, at 188. The "Victims Bill of Rights" appears to curtail the
plea-bargaining practices involving serious felony cases. Despite this attempt to curb pleabargaining, negotiations have not drastically declined as anticipated. See id. The reason for
the stable amount of plea-bargaining is because Proposition 8 contained a serious flaw. See id.
It only requires the prosecutor to abstain from plea-bargaining if the prosecutor files the serious felony case in superior court. See id. This loophole did not eliminate negotiation settlements because the prosecutor typically initiated the serious felony case in the municipal court,
thereby enabling the prosecutor and defendant to plea bargain any serious felony. See id. This
loophole may be eliminated with the consolidation of municipal and superior courts in certain
California counties. See id.
87. CAL. PENAL CODE §§ 667, 1170.12 (West 1999).
88. See id.
89. See id. The felony does not have to be a serious or violent felony in order to receive a
double sentence under the law. See id.
90. See id. § 1192(c), as amended by 1999 Cal. Legis. Serv. Ch. 298 (A.B. 381) (West
1999); CAL. PENAL CODE §§ 667.5(c), 1170.12(a) (1999). Again, the felony conviction does
not have to be serious or violent to qualify for a sentence under the 'Three Strikes" law. Although the crime is not violent or serious, the sentence will still require a third strike conviction unless the judge uses discretion to strike a prior offense. See People v. Superior Ct. (Romero), 917 P.2d 628 (Cal. 1996).
91. See CAL. PENAL CODE §§ 667(e)(2)(A)(i)-(iii), 1170.12(c)(2)(A)(i)-(iii) (West 1999).
92. See id. §§ 667(g), 1170.12(e) (West 1999).
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violent and serious felony cases.93 Both statutes have identical clauses prohibiting plea-bargaining, and each statute states: "[p]rior felony convictions
shall not be used in plea bargaining. . . . The prosecutor shall plead and
prove all known prior felony convictions and shall not enter into any agreement to strike or seek the dismissal of any prior felony conviction allegation . . 94
Nevertheless, these statutes allow exceptions to the general rule against
plea-bargaining strike cases.95 For example, a prosecutor may move to dismiss a prior felony conviction if it is in furtherance of justice or if there is
insufficient evidence to prove the prior conviction.9
California's "Three Strikes" law is a further attempt by the legislature
and the California voters to restrict the unbridled use of plea-bargaining.'
The legislature and the voters may be pleased with the law's ability to curtail
the amount of negotiations, but the desired effect is not the result of the antiplea-bargaining clause.98 The decrease of plea negotiations in second and
third strike cases is a consequence of defendants' unwillingness to settle
their cases because they have nothing to lose and everything to gain by going to trial.? The reluctance to settle results in an increase of trials, as well as
a backlog of cases awaiting trial."°
During California's first year of implementing the 'Three Strikes" law,
prosecutors pled only fourteen percent of second strike defendants and 6
percent of the third strike cases.' In San Diego, the amount of trials was
significantly lower; only forty percent of the third strike defendants proceeded to trial." Despite a lower percentage in San Diego, the law compelled San Diego to institute specialized courts to solely handle three strikes
proceedings. In Los Angeles, for example, the proportion of cases pending
93. See id.
94. Id.
95. See id. §§ 667(f)(2), 1170.12(d)(2).
96. See id. The Penal Code states that "[tihe prosecuting attorney may move to dismiss
or strike a prior felony conviction allegation in the interest of justice pursuant to Penal Code
section 1385, or if there is insufficient evidence to prove the prior conviction." Id.
97. See id.; Mark W. Owens, Crimes; Sentence Enhancement-Repeat Offenders: "Three
Strikes You're Out," 26 PAC. L.J. 442, 443 (1995); Tony Perry, "Three Strikes" Law Spawns
Specialist System in San Diego County Courts: FourJudges and DesignatedProsecutorsand
Public Defenders will Handle Such Cases Exclusively in Bid to Avoid Logjams, L.A. TIMES,
Mar. 14, 1995, at Al.
98. See James Wall, Three Steaks and You're Out, 337 ECONOMIST 54, 54 (1995).
99. See id.
100. See id.; NATIONAL INSTITUTE OF JUSTICE, U.S. DEP'T OF JUSTICE, KEY LEGISLATIVE
ISSUES IN CRIMINAL JUSTICE: MANDATORY SENTENCING, at
LEGISLATIVE ISSUES INCRIMINAL JUSTICE].
2 (1998) [hereinafter
KEY
101. See Owens, supra note 15.
102. See John Kerr, San Diego County Gives Nearly $3 Million Boost to DA Budget for
Three Strikes, WEST'S LEGAL NEws, Aug. 14, 1995, at 1105.
103. See id.; Perry, supra note 97.
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trial during the first year increased 144% from the previous year."°4
The percentage of cases where prosecutors dismiss, or "strike," charges
vary among California counties. "° For instance, more third strike defendants
are convicted in Sacramento, Los Angeles, and San Diego than all other
counties in California combined."° Prosecutors in these counties, however,
strike sixty-seven percent in Sacramento, forty-four percent in Los Angeles,
and twenty-five percent in San Diego.'" Notwithstanding these figures, other
California counties are more inclined to strike prior offenses.'
In Alameda
County, for instance, prosecutors strike virtually all third strike offenses and
charge the offenders as second strike defendants."° Alameda County is the
second most lenient county under the "Three Strikes" law, and Alameda District Attorney Thomas J. Orloff admits he selectively exercises his discretionary authority."' Alameda prosecutors only invoke the law when the de-
fendant's third strike charge is a serious or violent felony."'
The Court of Appeal for the Fourth District reviewed the discrepancy in
prosecutorial discretion between San Diego and San Francisco Counties."'
In People v. Andrews, Andrews was convicted of possessing a single rock of
cocaine (.1 gram), as well as a misdemeanor possession of drug paraphernalia in San Diego County."' Andrews was sentenced under the "Three
Strikes" law."" On appeal, Andrews contended he was denied his equal protection and due process rights because he would not have received a three
strikes sentence if he were charged in San Francisco."' Despite the disparity
in prosecutorial discretion in San Diego and San Francisco, the court held
104. See Wall, supra note 98.
105. See Harriet Chiang, Uneven Justice Under 3 Strikes: Counties Vary in How They
Enforce Law, S.F. CHRON., Sept. 23, 1996, at Al; NATIONAL INSTITUTE OF JUSTICE, BUREAU
OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, 'THREE STRIKES AND YOU'RE OUT": A REVIEW
OF STATE LEGISLATION, at 4 (1997) [hereinafter THREE STRIKES AND YOU'RE OUT]; Tony
Perry & Maura Dolan, Two Counties at Opposite Poles of "3 Strikes" Debate Crime: San
Franciscois Restrictive and San Diego Takes Hard Line, L.A. TIMES, June 24, 1996, at Al.
106. See High Times, California's "3 Strikes" Jails Cannabis Users (visited Oct. 13,
1999) <http:llwww.hightimes.comlhtlmag/9608/calthree.htn-l>(stating that 85% of San
Diego residents voted for the 'Three Strikes" law. Coincidentally, Governor Pete Wilson,
who signed the bill into law, was a former San Diego Mayor); Perry & Dolan, supra note 105;
THREE STRIKES AND YOU'RE OUT, supra note 105, at 3.
107. See Perry & Dolan, supra note 105.
108. See Chiang, supra note 105; THREE STRIKES AND YOU'RE OUT, supra note 105.
109. See Chiang, supra note 105.
110. See Steven Pressman & Jennifer Kaae, Three Strikes: The Law was Intended to
Send a Clear Message to Repeat Offenders. But No One Agrees what the Message is,
CALIFORNIA LAWYER, October, 1996, at 33.
111. See id.
112. See People v. Andrews, 65 Cal. App. 4th 1098, 1100 (1998).
113. See id.
114. See id.
115. See id. In fact, the San Francisco District Attorney would have sought a probation
sentence for Andrews because the District Attorney predominately exercises its discretion in
strike cases and rarely implements the "Three Strikes" law. See id.
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the law did not deny Andrews of his due process rights."6 The court justified
the San Diego prosecutor's discretion because the prosecutor was complying
with the "Three Strikes" law, and admonished San Francisco for not doing
the same."' San Diego Superior Court Judge Thomas Whelan stated the
holding in more practical terms: "[a] guy in Alameda County [or San Francisco] with a rock of cocaine who qualifies for three strikes faces a maximum of three years and technically probation. If the guy drives down here to
San Diego, it's 25 to life.""' It appears the 'Three Strikes" law does not limit
prosecutorial discretion, but rather judicial discretion."9
II. ANALYSIS
California's 'Three Strikes" law is a highly debated law, and it receives
adamant supporters, as well as unrelenting critics.' Three strikes critics believe the law is poorly written, over broad, and fails to take into account the
defendant's individualized circumstances, including the "... offender's particular disposition, rehabilitative history, [and] the likelihood of future
criminal acts."' 2 ' Additionally, the law is not relieving California of violent
offenders, as voters generally believe.
Notwithstanding these criticisms, the 'Three Strikes" law yields disproportionate results to all defendants that plea bargain, but particularly to first
strike offenders. An illustration of the disparity is easily demonstrated by a
typical petty theft offense. A petty theft charge is not a serious or violent fel-
116. See id; THREE STRIKES AND
YOU'RE OUT, supra note 105.
117. See Andrews, 65 Cal. App. 4th at 1100.
118. Chiang, supra note 105.
119. See Kaminer, supra note 75; KEY LEGISLATIVE ISSUES INCRIMINAL JUSTICE, supra
note 100. But see People v. Superior Ct. (Romero), 917 P.2d 628 (Cal. 1996) (stating that judicial discretion is an appropriate tool in sentencing strike defendants).
120. See Derrick Z. Jackson, Cellucci's Wicked Pitch, BOSTON GLOBE, Mar. 5, 1999, at
A17; Owens, supra note 15, at 144.
121. Owens, supra note 15, at 144. (stating the law also falls to look at an offender's age,
criminal acts, and the ability to be rehabilitated).
122. See id. According to the California Legislative Analyst's Office, the percentage of
violent offenders convicted under the "Three Strikes" law is insubstantial. See Jackson, supra
note 120. Only 20% of the second strike convictions, and 38% of the third strike convictions
were violent offenses. See id. The majority of three strike convictions are drug possession,
robbery, burglary and petty theft. See id.; see also Antonio Olivo, Families Of Inmates March
in Protestof 3-Strikes Law Courts," CriticsSay Measure is Unfair to Nonviolent Felons and
has no Effect on Crime Rates, L.A. TIMES, Mar. 3, 1999, at BI (remarking on a case involving
Dan Johnson, a San Juan Capistrano resident who was sentenced for a small quantity of narcotics, his prior convictions were over twenty years old); BUREAU OF JUsTIcE STATISTICS, U.S.
DEP'T OF JUSTICE, CRIMINAL VICTIMIZATION,
1998: CHANGES 1997-98 wITH TRENDS 1993-98,
at 1 (1999) (finding crime victims experience 22.9 million property crimes (defined as burglary, motor theft, and household theft) compared to 8.1 million violent crimes (rape or sexual
assault, aggravated and simple assault and robbery)); Latest statistics by CDC (visited Oct.
23, 1999) <http://www.factsl.com/ general/stats.htm> [hereinafter Latest Statistics]; Kerr,
supra note 102.
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ony as defined under California Penal Code section 1192.12.' 3 Petty theft is
punishable by six months in the county jail, or a fine of $1,000 dollars, or
both." This crime is a "wobbler" because the prosecutor has the discretion
of filing the charge as a misdemeanor or a felony after a prior theft conviction. "
Petty theft is a crime ordinarily plea-bargained because the defendant
typically receives minimal punishment.'26 If a defendant pleads guilty to both
a burglary and petty theft charge, the defendant is at risk of a double sentence under the "Three Strikes" law if the defendant receives another petty
theft conviction. 7 This scenario becomes more complex when the defendant
pleads guilty to two burglaries, either at the same time or on different occasions. Then, if the defendant receives two petty theft convictions, a minimum twenty-five year prison sentence will follow.' The sentence is unduly
harsh because the defendant faces a third strike for a minor misdemeanor.'29
Although the perception is that the 'Three Strikes" law eliminates plea
bargaining completely, that is not entirely correct. In actuality, the law encourages first strike defendants to plead guilty because they receive insubstantial sentences in return for their guilty plea. Unfortunately, before the defendant realizes the effects of plea bargaining to a minor crime, the defendant is facing twenty-five years to life.
A. County Comparisonsof California's"Three Strikes" Law and the
Consequencesto FirstStrike Defendants
The Bureau of Justice Statistics study based on the 1991 incarceration
rates establishes that 5.1 percent of the United States population will be incarcerated, in state or federal prison, at least once during their lifetime.'
123. See CAL. PENAL CODE § 1192.12 (West 1999); see also CAL. PENAL CODE § 666
(West 1999).
124. See CAL. PENAL CODE § 666 (West 1999).
125. See id.; Barr,supra note 17. The term "wobbler" was coined because the prosecution has discretion to charge an offense as a felony or misdemeanor. See id. Under three
strikes, the court now has discretion to reduce a "wobbler" if the prosecutor decides to charge
the defendant with a felony. See generally People v. Superior Ct. (Romero), 917 P.2d 628
(Cal. 1996).
126. See Associated Press, "Three Strikes" Means 200 Years for Welfare Fraud,SAN
DIEGO UNION-TRIB., June 21, 1999, at All [hereinafter "Three Strikes" Means 200 Years].
127. See Beres & Griffith, supra note 25, at 121; THREE STRIKES
pra note 105, at 3.
128. See THREE STRIKES AND YOU'RE OUT, supranote 105, at 3.
AND
YOU'RE
OUT, su-
129. See Harvard Law Review Association, Criminal Procedure-Sentencing-California
Enacts Enhancementsfor PriorFelony Convictions-Act of March 7, 1994, 1994 Cal. Legis.
Serv. Ch. 12 (A.B. 971) (to be codified at CAL. PENAL. CODE § 667), 107 HARv. L. REv.
2123, 2125-26 (1998) (remarking on how the law separates violent felonies from property
crimes); Beres & Griffith, supra note 25, at 120; Kerr, supranote 102 (stating "Three Strikes"
sentence may result from stealing a bottle of shampoo or a bottle of liquor).
130. See BUREAU OF JUSTIcE STATISTICS, U.S. DEP'T OF JUSTIcE, LIFEriME LIKELIHOOD
OF GOING TO STATE OR FEDERAL PRISON, at 1 (1997) [hereinafter LIFETvm LIKELIHOOD] (stat-
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Since 1991, these figures have substantially increased while the United
States population has remained consistent.' This incarceration rate is significantly higher in California because California imprisons more individuals
than any other state.'32 As of July 1, 1999, California prisons housed well
over 160,000 inmates.'33 The California Department of Correction's Master
Plan predicts the figure will expand to over 176,000 by April of 2004.'" The
inmate population in California prisons certainly will not decrease, and more
likely will exceed the maximum operating capacity with the enactment of
the "Three Strikes" law.' 35
The California Department of Corrections (CDC) also compiles statis-
tics on strike offenses.'36 CDC estimates that by 2002, at least 55,000 prisoners in California will be second or third strike offenders.'37 This is a wellfounded estimate because 26,000 were in prison for a second or third strike
offense in 1996 and 32,575 by August of 1997.131 With these figures, continuing to employ the 'Three Strikes" law for
nonviolent offenses drastically
3
hampers alleviating the prison population.
Turning to the separate counties within California, it currently seems
that a first strike offender's chance of conviction under California's 'Three
Strikes" law is based primarily on the jurisdiction where the defendant is
first convicted."' Criminal defendants typically commit crimes in counties
where they reside, and therefore are prosecuted and convicted in these same
counties. 4' Different sentencing schemes result depending usually on where
the defendant is living at the time of the offense.'42
ing the percentage increases for males, which is nine percent,and this figure climbs for black
males, who have a one in four chance of incarceration at least once during in his lifetime).
131. See id. at 6; Beres & Griffith, supra note 25, at 104.
132. See BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, PRISON AND JAIL
INMATES AT MIDYEAR 1998, at 3, tbl.2 (1999) [hereinafter PRISON AND JAIL]; BUREAu OF
JuSTIcE STATISTICS, U.S. DEP'T OF JUSTICE, PROFILE OF JAIL INMATES, 1996, at 2, 4 tbl.3
(1998) [hereinafter PROFILE OF JAIL INMATES] (stating that on June 30, 1998, 158,742 prison-
ers were in California prisons. The state with the next highest prison population is Texas, at
143,299).
133. See California Department of Corrections, CDC Facts (visited Sept. 7, 1999)
<http://www.cdc.state.ca.us.htm>.
134. See id.
135. See id.
136. See Latest Statistics,supra note 122.
137. See id.
138. See id; California Department of Corrections, supra note 133.
139. See Laura Gatland, Three Strikes a Soft Pitch: Most States will Send Few to Prison
under New Laws, 84 A.B.A. J., Feb. 1988, at 29; TRuTH INSENTENCING, supra note 2, at 3
(stating the prison population has increased seven percent annually in state prisons between
1990 and 1997); Latest Statistics, supra note 122.
140. See Mike Males et al., Justice Policy Institute, Striking out: The Failureof California's "Three Strikes and You're Out" Law (visited Sept. 7, 1999) <http://viww.cjcj.
org/jpi/strikingout.html>.
141. See MASTERS & ROBERSON, supra note 68, at 201-09.
142. See Males et al., supra note 140.
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The National Institute of Justice (NIJ) conducted a study of twelve
counties in California and found a pronounced discrepancy in sentencing
from county to county after the enactment of the "Three Strikes" law. 43 As
mentioned earlier, Sacramento, Los Angeles, and San Diego counties convict more third strike offenders than all other counties in California." Specifically, San Diego, sends more second and third strike defendants to prison
per capita than any county. 45 It would seem to reason that because Sacramento, Los Angeles, and San Diego imprison more strike offenders, these
counties would experience a significant reduction in the crime rate.'" Surprisingly, the crime rate in counties heavily relying on the "Three Strikes"
law are not experiencing as great a decline as other counties that are restrictively applying the law. 47
This fact can be seen in Santa Clara County. Santa Clara, the sixth most
frequent county to employ the 'Three Strikes" law experienced a rise in violent crimes after the 'Three Strikes" law went into effect. 48 San Francisco
and Alameda, two counties that infrequently employ the 'Three Strikes" law,
experienced the greatest drop in the crime rate for violent offenses.'49 Unfortunately, the crime rate in counties uniformly using the 'Three Strikes" law
is not decreasing as steadily as in counties that use discretion when applying
143. See id.; Val Werier, Jailing Them Doesn't Help, WINNIPEG FREE PRESS, Mar. 18,
1999, at A12.
144. See Males et al., supra note 140 (stating Sacramento and Los Angeles each convict
3.6 per 1000 third strike convictions, and San Diego convicts 3.4 per 1000 third strike convictions).
145. See id. (stating San Diego has an average of 35.3 per 1000 cases for second and
third strike cases, compared to Sacramento with 26 per 1000, and Los Angles with 33.5 per
1000); Olivo, supra note 122; Perry & Dolan, supra note 105.
146. See Janet Wilson, Rally Calls Foul on "Three Strikes" Crime: The Fifth Anniversary of the CaliforniaLaw Brings 50 Protestersto the Orange County Circle, L.A. TIMES,
Mar. 8, 1999, at BI; Bill Ainsworth, "Three Strikes" Splits FormerComrades against Crime,
SAN DiEGo UNION-TRiB., June 6, 1999, at All (other states have seen a decline in the crime
rate without the implementation of the 'Three Strikes" law); Males et al., supra note 140.
147. See BuREAu OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, HOMICIDE TRENDS IN
THE UNrrED STATES, at 1 (1999); Henry Weinstein, California and the West 3-Strike Law
Overstated, Study Says Report: Two Professors Contend there is no Evidence it Reduces
Crime Rate Among Repeat Offenders as the Attorney General has Asserted, L.A. Tnvirs, Oct.
11, 1998, at A3 (stating that many politicians, including Attorney General Dan Lungren, believe the crime rate has decreased because of the "Three Strikes" law. The crime rate, however, dropped before the "Three Strikes" law was implemented, and other states without the
"Three Strikes" law have seen a decrease as well. The main reasons for the decline in the
crime rate is because of community policing); Beres & Griffith, supra note 25, at 127 (remarking that the homicide rate is comparable to other states without the "Three Strikes" law.
The greatest drop in the crime rate was in urban minority youth. Although the crime rate appears to drop more in California, it is incorrect because California has a large urban population, where other states do not); Males et al., supra note 140.
148. See Males et al., supra note 140.
149. See id. (San Francisco convicts .3 per 1000 of third strike defendants and Alameda
at .7 per 1000 third strike defendants); Jackson, supra note 120 (stating that San Francisco
had a 28% decline in the crime rate, compared to other California counties).
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the law. 5
Combining the high number of second and third strike offenders incarcerated and the increased crime rates in those counties strictly imposing the
"Three Strikes" law, there is no doubt that the majority of criminal acts are
being committed by first strike offenders. Therefore, it seems that the law
severely punishes second and third strike offenders, while releasing first
strike offenders so that they can continue to commit criminal acts.'
With first strike offenders excessively committing crimes, the prospect
of repeat offenses is readily apparent." The majority of criminals in United
States are repeat offenders, so the likelihood that a first strike offender will
become a habitual offender is extremely plausible." The probability of repeat offenses increases in all California counties, but the risk is even greater
in counties that uniformly implement the 'Three Strikes" law."
B. Excessively Plea BargainingFirstStrike Defendants
After the initiation of California's 'Three Strikes" law, plea agreements
totaled ninety-one percent of the felony convictions.' The consistency in
plea-bargaining has continued even though a large percentage of second and
150. See Males et al., supra note 140; Jackson, supra note 120; Weinstein, supra note
147.
151. See BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, FELONY DEFENDANTS IN
LARGE URBAN COUNTIES, 1994, at 2 (1998) [hereinafter FELONY DEFENDANTS IN LARGE
URBAN COUNTIES]; KEY LEGISLATIVE SSUESS INCRMINAL JUSTICE, supra note 100 (stating
there is an increase in trials, as well as the crime rate when the prosecutor fails to strike prior
convictions). This conclusion only makes sense because the majority of second and third
strike offenders are incarcerated and therefore unable to commit crimes. See id. However, offenders without a record and first strike offenders are not incarcerated. Therefore, these are
the groups that must be responsible for the majority of criminal behavior. See id.
152. See American Civil Liberties Union, 10 reasons to oppose "3 strikes, You're out,"
Library (visited Sept. 7, 1999) <http://www.aclu.orgllibrarylpor4.html>; Austin, supra note
23, at 239, 256.
153. See BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, CORRECTIONAL
POPULATIONS IN THE UNITED STATES, 1996, at Highlights (1999); FELONY DEFENDANTS IN
LARGE URBAN COUNTIES, supra note 151; see also American Civil Liberties Union, supra
note 152. The percentage of prior convictions for county jail inmates in 1996 was 72.7%. Out
of this figure, 63% were previously on probation, and 58.4% were previously in jail or probation. These figures are inconsistent because many inmates previously served a jail or prison
sentence and a probation sentence. See id.
154. See American Civil Liberties Union, supra note 152. The ACLU Union states the
"'Three Strikes" law does not have any deterrent effect because many criminals commit violent acts in anger, passion, or under the influence of alcohol or drugs. These spontaneous acts,
or impulsive actives, are not the types of acts that can be deterred by a harsh punishment like
three strikes. See id.
155. See Henry J. Reske, Hardly Hardball:Prosecutorsin Most of 22 States Studied are
not using Three Strikes Laws Against Repeat Offenders, 82 A.B.A. J. 26, 26 (1996); Alshuler,
supra note 54, at 931; FELONY SENTENCES INSTATE COURTS, supra note 54, at 10 (1999) (stat-
ing that this rate has not changed from 1988 to 1996. The figure has remained at approximately 90% since 1988); Gatland, supranote 139.
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third strike defendants refuse to plea bargain.'5 6 With the ease of plea bargaining, it is unlikely that states without the "Three Strikes" laws are likely
to modify their sentencing practices. Therefore, the expected reduction in
plea agreements by the passage of the "Three Strikes" law is nonexistent.
With the numerous strike cases awaiting trial, as well as the stable amount of
plea bargaining, it becomes apparent that first strike defendants are pleading
guilty to more cases than ever before.'"
The amount of settlement agreements that result between second and
third strike defendants compared to first strike defendants has dramatically
declined since the law went into effect.' A review of 12,600 cases in Los
Angeles County found second and third strike defendants more likely to proceed to trial than first strike felony cases." 9 Second strike cases are likely to
remain unresolved sixteen percent longer and third strike cases forty-one
percent longer, than first strike felony cases.'
Although there is a great deal of negotiations before the prosecutor files
charges, the broad discrepancy in plea agreements is profound.' 6 ' There are
two possibilities for the inconsistency between the large percentage of plea
settlement agreements that occur and the number of second and third strike
defendants demanding jury trials.'62
One potential reason for the disparity between the consistent number of
plea bargaining agreements and the large number of second and third strike
cases going to trial is that these strike cases are not recognized as strike
cases. The prosecutor is involved in charge bargaining or is automatically
striking prior convictions. "'This argument has some merit because in Los
Angeles, the district attorney filed fifteen percent fewer cases from the second quarter of 1995 to the second quarter of 1996.'" Despite the fifteen percent decrease, it is unlikely this reduction accounted for the large discrep156. See FELONY SENTENCES INSTATE COURTS, supra note 54, at 10; THREE STRIKES AND
YOU'RE OUT, supra note 105, at 3; American Civil Liberties Union, supra note 152.
157. See sources cited supra note 156.
158. See THREE STRIKES AND YOU'RE Our, supra note 105, at 3; American Civil Liberties Union, supra note 152.
159. See sources cited supra note 158. The ACLU states the cost of plea bargaining is
$600 dollars, compared to a trial that can cost $50,000 or more. See American Civil Liberties
Union, supra note 152.
160. SeeTHREESTRDCESANDYOU'REOUT, supra note 105, at3.
161. See Gatland, supranote 139; Reske, supra note 155.
162. See Gatland, supra note 139; Brown supra note 83, at 700; see also Reske, supra
note 155 (discussing yet another possibility: that prosecutors are using their leverage with the
'"Three Strikes" law in order to threaten defendants into plea bargaining. Prosecutors are telling defendants "If you don't plead guilty... you could be eligible for three strikes." This allows coercion of defendants by forcing them to plead guilty to save time).
163. See Gatland, supra note 139. This was also shown in counties such as Alameda and
San Francisco, but the large numbers of defendants convicted in Sacramento, Los Angeles,
and San Diego suggest that there is something other then charge bargaining occurring. See id.
Additionally, in Alameda County, third strike offenders are usually being convicted as second
strike offenders, and many of these offenders are not plea bargained. See id.
164. See THREE STRanEs AND YOU'RE Our, supra note 105, at 3.
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ancy in plea bargaining because there are massive numbers of defendants
sentenced under the "Three Strikes" law. 65 Additionally, because of the high
numbers of second and third strike convictions, the number of pleabargained cases throughout the country should have dropped.'66 Pleabargaining, however, has remained consistent nationwide and continues to
be prevalent for disposing of felony cases. 67
The most logical explanation for the discrepancy in plea-bargaining and
the number of second and third strike trials is that more first strike offenders
are pleading guilty to open the way for second and third strike trials."
Prosecutors are more- inclined to negotiate with a first strike offender because the law does not impede the prosecutor's ability to plea bargain. 69
Prosecutors, acting efficiently, give first strike defendants a better deal so the
prosecutor may spend their time trying second and third strike cases. Unfortunately, first strike defendants gladly accept the prosecutor's offer because
the prosecutor gives them a reduced sentence in exchange for a guilty plea. 7 '
Although the prosecutor's eagerness to plea bargain first strike cases
appears contrary to the prosecutor's objectives, pleading strike cases actually
produces favorable results for the prosecutor."7 ' Prosecutors benefit from
plea-bargaining first strike offenders because they know nonrehabilitated offenders continue to commit offenses when they are released from prison. 72
Once the defendant returns, the prosecutor charges the defendant with a second or third strike and the defendant's prison term automatically doubles or
73
triples.
The main rationale for the prosecutor's willingness to wait for defendants to return to the criminal justice system is that the majority of defendants facing their first strike offense are under the age of thirty. 7 In fact,
young males between the ages of eighteen and twenty-four commit the ma165. See id.
166. See id.
167. See Reske, supra note 155; Alshuler, supra note 54, at 931; FELONY SENTENCES IN
STATE COURTS, supra note 54, at 10.
168. See Brown, supra note 83, at 700.
169. See id. This applies under Proposition 8, as well as California's "Three Strikes"
Law, but this may change with the consolidation of municipal and superior courts in California. This was also shown in People v. Delgado, where the district attorney was willing to give
a three year sentence in exchange for a guilty plea. See Krikorian, supra note 1.
170. See Brown, supra note 83, at 699-700.
171. See Krikorian, supra note 1.
172. See id. Besides the longer sentence, the defendant must serve a minimum of 85% of
the sentence. See id.; CAL. PENAL CODE §§ 667, 1170.12 (West 1999).
173. See FELONY DEFENDANTS INLARGE URBAN COUNTIES, supra note 151; PROFiLE OF
JAIL INMATES, supra note 132; see generally THREE STRIKES AND YOU'RE OUT, supra note
105; LuEruviE LKELIHOOD, supra note 130. There is a great likelihood of an offender committing a second or third offense, based on the number of repeat offenders in prison and in
jails across the country. See id.
174. See Austin, supra note 23, at 256; see generally LIFETIME LKELIHOOD, supra note
130.
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jority of serious crimes.' If a defendant is convicted between the ages of
eighteen and twenty-four, he still has a minimum of six years before "aging
out" of criminal behavior. 7 Therefore, first strike defendants are likely to
commit a second or third offense because of the increased frequency of
criminal behavior in young offenders."n
The Los Angeles District Attorney, in People v. Delgado, readily confessed his inclination to postpone a stringent sentence until Delgado revisits
the criminal justice system.' The prosecutor also admitted there was nothing wrong with waiting for a first strike defendant to reenter the system in
order to impose a harsher penalty.' 9 Instead of placing the first strike offender in work or educational programs, prosecutors are willing to remain
idle until the first strike defendant "strikes" again so an additional conviction
can be obtained.' Ironically, in the same instance, numerous defendants eagerly plead guilty to their first strike offense without receiving any rehabilitative treatment. By allowing defendants to plea bargain, it almost certainly
guarantees at least one more felony conviction because the defendant is not
receiving any quality assistance to reform.'
C. Revocation of California's"Three Strikes" Law?
The ramifications of pleading defendants guilty to a first, second, or
third strike are somber. The consequences may be better understood if California would initiate a study bill to evaluate the effects of plea-bargaining
strike offenses. Unfortunately, on October 10, 1999, Gray Davis vetoed a
proposed bill designed to investigate the effects of the "Three Strikes" law.'
175. See Peter Reinhart, For Young Guns, One Strike Ought to be Enough, WALL ST. J.,
Mar. 30, 1998, at A18; Austin, supra note 23, at 256; Mauer, supra note 16, at 33.
176. See Mauer, supra note 16, at 33.
177. See LIFETIME LIKELIHOOD, supra note 130, at 6; Mauer, supra note 16, at 33; see
generally PRISON AND JAIL, supra note 132. Between 1991 and 1995, the overall prison population in state prisons in the United States dramatically increased from 792,535 to 1,078,545,
but the number of new court commitments rose from 337,478 to 361,464 within the same period. See id. New commitments are prisoners entering the prison from a sentence from the
court, as opposed to parole violation, transferors, or escapees. See id. Approximately half of
the new court commitments entered the prison system for the first time. Because California is
one of the leading states to incarcerate defendants at a faster rate, many offenders that enter
prison for the first time are from California and are subjected to the "Three Strikes" law. See
LIFETIME LIKELIHOOD, supra note 132, at 6. Additionally, even if the offender manages to
"age out" of the criminal behavior, the offender still has a chance at receiving a third strike
sentence if the defendant is prosecuted for a minor felony. See id.
178. See Krikorian, supra note 1.
179. See id.
180. See id.; "Three Strikes" Means 200 Years, supra note 126 (the law does not alleviate a defendant from a sentence under the "Three Strikes" law, no matter how long it has been
since the previous offense).
181. See PROFILE OF JAIL INMATES, supra note 132 (discussing the criminal history of the
jail inmate that is awaiting trial, sentencing, or is serving a sentence).
182. See Latest Statistics, supra note 122.
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With this veto, the answer to questions concerning plea-bargaining
under the
83
"Three Strikes" law may not come anytime in the near future.
Although Gray Davis is attempting to hide the fact that the law is not
working, there are still repercussions to pleading guilty, without regard to
the first, second, or third strike.' It will be practically hopeless for a pleading defendant to receive the same sentence compared to a non-pleading defendant if the 'Three Strikes" law is ever modified or repealed.'
Defendants plea bargain because they receive better sentences compared
to sentences after a trial. Defendants contemplate this factor when debating
whether to take their case to trial. Unfortunately, if California's "Three
Strikes" law is ever repealed, pleading defendants will suffer serious side effects by pleading guilty to a second or third strike. With the prosecutor's
ability to reduce charges before filing the complaint, defendants will not be
relieved of their sentence even if the agreement was based on the threat of a
three strikes sentence.' 86 This will occur because courts will be reluctant to
set aside a felony conviction, especially if no evidence suggests the defendant was sentenced under the law." This is troublesome for defendants
throughout California because prosecutors are striking a great percentage of
second and third strike charges.'88 Unfortunately, reducing charges before filing the complaint will continue when the first strike defendant returns to
court for the second and third time.'89
California's Three-Strikes Project recently proposed to the California
Attorney General's Office an amendment to repeal the 'Three Strikes" law
concerning nonviolent felonies.' The proposal seeks to amend California's
'Three Strikes" law by confining the law to violent or serious offenses. 9 '
The amendment would retroactively apply to nonviolent second and third
183. See id.
184. See id.
185. See Owens, supra note 15; Perry, supra note 97. It should be noted that there is tremendous public support for the "Three Strikes" law, and it is very unlikely that the law will
be repealed or overruled by judicial interpretation. If the law is modified or repealed, uncertainty will continue to exist for the offenders that plea bargained their strike cases. The number of San Diego voters who approved of the "Three Strikes" law was 75.6%, and San Diego
juries have convicted 94% of the second and third strike defendants from initiation of the law
until June of 1996. San Francisco, on the other hand, voted 57.3 to 42.7, and some San Fran-
cisco juries have refused to convict strike offenders, especially if the current offense is drug
possession or property crimes. See id.
186. See KEY LEGISLATIVE ISSUES IN
CRIMINAL JUSTICE, supra note
100.
187. See generally People v. Couch, 48 Cal. App. 4th 1053 (1996); People v. Cunningham, 49 Cal. App. 4th 1044 (1996). But see People v. Smith, 59 Cal. App. 4th 46 (1997).
188. See Allan Abraham, 25 Percentof Three Strikes Cases go to Trial,L.A. TIMWs, July
2, 1996, at A18.
189. See Terrance D. Miethe, Charging and Plea BargainingPractices under Determinate Sentencing: An Investigation of the HydraulicDisplacement of Discretion,78 J. CRlM. L.
& CR4NOLOGY 155, 165 (1987).
190. See Latest Statistics, supra note 122.
191. See id.
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strike offenders sentenced under the "Three Strikes" law."n Non-pleading defendants will automatically have their sentences reduced if the proposal is
accepted. 93 Unfortunately, disparate treatment results because non-pleading
defendants contemplate the possibility of a longer term of imprisonment, but
pleading defendants do not realize that plea-bargaining could actually result
in a greater sentence.
If the proposed amendment is accepted, pleading defendants will possibly be incarcerated longer than non-pleading defendants for two reasons. 94
First, the prosecutor gains longer sentences by using the "Three Strikes" law
against the defendant.'" Prosecutors have the ultimate authority to strike a
previous conviction, and they can use this power as a threat in the negotiation process. 9 ' Although the defendant is sentenced under the law, the record
does not show it. 97 The court, without any evidence to suggest the defendant
was sentenced under the 'Three Strikes" law, will be reluctant to reverse the
conviction.' 5
Second, the prosecutor and defendant are involved in implicit pleabargaining.'" The prosecutor does not technically offer the defendant anything in exchange for the agreement, but the prosecutor strikes a prior conviction if the defendant is willing to plead guilty.' Under these circumstances, the court will probably conclude the defendant would have received
the same sentence regardless of the 'Three Strikes" law, so the conviction
will stand because it was a harmless error " '
Although California's 'Three Strikes" law requires a complete ban on
plea bargaining, it becomes readily apparent that similarly situated defendants receive unequal punishments depending on whether a defendant plea
192. See id.
193. See id. (It appears the recommendation unintentionally separates non-pleading and
pleading strike defendants. This, however, leaves problems for the pleading defendant because the defendant will receive an unjust sentence compared to the non-pleading defendant.)
194. See KEY LEGiSLATIVE ISSUES INCRIMINAL JusTIcE, supra note 100. It may be argued that a pleading defendant usually does not receive the same sentence as the non-pleading
defendant. However, under the 'Three Strikes" law, the same defendants are receiving similar
sentences with or without plea bargaining because the prosecutor uses the law against the
pleading defendant. See Gatland, supra note 139. Therefore, the pleading defendants receive
greater sentences under the law. Unfortunately, if the law is repealed, the sentencing disparities will be profound. See id.
195. See Gatland, supra note 139.
196. See id.; McCallister & Bregman, supra note 65, at 105.
197. See KEY LEGISLATrVE ISSUES IN CRIMINAL JUSTICE, supra note 100.
198. See id.; Alex Ricciardulli, The Strike Zone, 8 CALIFORNIA DEFNDER 1 (Summer,
1998); Abraham, supra note 188. This is particularly true because of the large amount of plea
bargaining in California. It is ironic that although the plea bargaining process takes considerably less time than a trial, many judges will not review the case because it is a waste of time.
See id.
199. See KEY LEGISLATIVE ISSUES INCRIMINAL JUSTICE, supra note 100; Guidorizzi, supra note 18, at 756.
200. See Guidorizzi, supra note 18, at 756.
201. See Abraham, supra note 188.
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bargains. In trying to alleviate disparities in sentencing, amending or repealing California's "Three Strikes" law actually creates more disparities for
plea-bargaining defendants. Defendants who await trial will automatically
have their sentence reduced if the law is modified or repealed, yet pleabargaining defendants will not.
III. RECOMMENDATIONS
At first glance, plea-bargaining appears convenient and rewarding to the
criminal defendant who faces a short term of incarceration in exchange for a
guilty plea. Unfortunately, plea-bargaining under California's "Three
Strikes" law places a heavy disadvantage on the defendant. With little to
gain and much to lose, many second and third strike offenders are willing to
take their chances at trial.2"2 This reduction of plea agreements by second and
third strike defendants, however, does not cause an overall reduction in plea
agreements because more first offenders are pleading guilty. 3 First strike
defendants have an incentive to plead guilty because they receive better
agreements with shorter sentences. 2 4 In turn, prosecutors, with great discretion to charge, try these same defendants when they return with a second and
third strike charge. ' 5
Defense attorneys must stop plea bargaining cases merely out of routine.2" The majority of young offenders are first strike defendants, and they
have a long time to "age out" of their criminal behavior.2' These same defendants are also likely to be poor and uneducated. 3 By allowing first strike
defendants to plead guilty to strikable offenses, defense attorneys are sentencing these defendants to a life behind bars.2" It is not in the client's best
interest to plead guilty to the first strike offense without receiving rehabilitation because the defendant ultimately emerges back into the criminal justice
202. See Wall, supra note 98.
203. See generally FELONY SENTENcEs INSTATE COURTS, supra note 54; Gatland, supra
note 139; Alshuler, supra note 54, at 931; Reske, supra note 155.
204. See Krikorian, supra note 1.
205. See TRUTH INSENTENCING, supra note 2, at 13 (stating individuals sentenced under
mandatory sentencing schemes are not released from prison as early as before mandatory sentencing laws were implemented).
206. See Rebecca Marcus, Racism In Our Courts: The Underpinningsof Public Defenders and its DisproportionateImpact upon Racial Minorities, 22 HASTINGS CONST. L.Q. 219
(1994). Without funds, defense attorneys will be unable to try cases, but as the system stands
now, indigent defendants are receiving inadequate representation. See id. With or without
these funds, defense attorneys need to make severe changes in the way they conduct plea bargaining negotiations because resources will continue to dwindle until there is nothing left. See
id.
207. See Mauer, supra note 16, at 30.
208. See McCallister & Bregman, supranote 65, at 105.
209. See PRoFrLE OF JAIL INMATES, supra note 132; FELONY DEFENDANTS IN LARGE
URBAN COUNTIES, supra note 151; see generallyTHREE STRcES AND YOu'RE OUT, supra note
105; LFETvIE LEamEOOD, supra note 132.
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system to receive a second or third strike offense."'
A suggestion may be to take every case to trial, but this is not appropriate to resolve the problem created by the 'Three Strikes" law. 2 ' First, taking
all cases to trial is too expensive and time consuming for the court system. 2
Second, defendants will not engage in rehabilitative programs until the jury
convicts them."3 Next, defendants are adamant about going to trial when
they face the possibility of a third strike conviction, but they are not when it
is the first strike offense." 4 Last, defendants will not benefit from trials because their sentences will continue to withhold rehabilitative programs.
Sadly, however, defendants do not conceptualize the effects of pleading
guilty to the first strike offense although this conviction is just as devastating
as the third. This is especially true when no rehabilitation exists for these offenders. 2 5 The only possible solution is to continue plea bargaining defendants, but require defendants to undergo intensive rehabilitative sentencing.
Intensive rehabilitative sentencing, however, does not imply long prison sentences because the majority of defendants do not require incarceration before
rehabilitation occurs." 6 The only benefit for some first strike defendants sentenced to prison is they will "age out" of their criminal behavior before they
are released.2 7 Incarcerating numerous first strike offenders does not stop
210. See sources cited supra note 209.
211. See David R. Thomson, How Plea BargainingShapes Intensive ProbationSupervision Policy Goals, 36 CRIME & DELiNQ. 146, 158 (1990); "Three Strikes" Means 200 Years,
supra note 126; Kerr, supra note 102. It may be argued that all cases that may have harsh
consequences to the defendant under the "Three Strikes" law should be tried. Although this is
timely and expensive, prosecutors will be reluctant to prosecute second and third strike offenses because they will be unable to handle the magnitude of trials. This will benefit nonviolent second and third strike defendants because the prosecutor will only file the true "violent"
and "serious" cases, instead of wasting taxpayers dollars convicting nonviolent offenders.
This, however, is impractical because of the sheer numbers of criminal defendants and the
amount of time it takes to try one case, let alone every case. See id.
212. See generally Kerr, supra note 102.
213. See supra text accompanying note 73; see generally Figuerira-McDonough, supra
note 51.
214. See Wall, supra note 98.
215. See Bureau of Justice Statistics, Criminal Offender Statistics (visited Sept. 10,
1999) <http:llwww.ojp.usdoj.gov/crimofflhtm>. It may be contended that many first strike
offenders will not reenter the criminal justice system. There is, however, no evidence to suggest which defendants will reenter the criminal justice system during their lifetime, but it is
clear nearly three-fourths of the jail and prison populations are repeat offenders. In 1983,
108,580 released from prison in eleven states, 62.5% were rearrested for a felony or serious
misdemeanor within three years of the release; out of this percentage of recidivist, 46.8%
were convicted again, and 41.4% returned to jail or prison. Therefore, it is apparent many of
the first strike offenders will see the revolving doors of justice again. See id.
216. See Thomson, supra note 211, at 146.
217. See Carolyn Wolpert, ConsideringRace And Crime: Distilling Non-PartisanPolicy
from Opposing Theories, 36 AM. CRIM. L. REv. 265, 286 (1999); Castellano, supra note 20,
at 439 (stating that rehabilitative programs are the only efficient way to reduce criminal behavior because jailing offenders only results in an increasing prison population); Mauer, supra note 16, at 33; Reinhart, supra note 175.
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criminal behavior, but instead fosters crime."' If, however, it is necessary for
the courts to sentence the offenders to prison, then the prison system must
incorporate effective work and educational programs into the system, or
criminal behavior will persist." 9 The belief that prison alone rehabilitates
criminal offenders is unsubstantiated, and without rehabilitative assistance,
these offenders will not stop their criminal behavior.22
Defendants not sentenced to prison must undergo intensive supervised
probation programs that incorporate work and educational programs into the
defendant's sentence." Although funding is difficult, it is less costly when
compared to the cost of incarceration per year in California prisons." Work
and educational programs, however, must be designed with the offender's
needs in sight for any of these programs to assist the offender.'
It is time to realize that a "good deal" now is not a "good deal" later.
The quicker defendants realize this, the more it allows those defendants to
understand the future consequences regarding plea bargaining first strike offenses without receiving rehabilitation. Defendants must be willing to deviate from the standard practice of plea bargaining, and require treatment programs that will enable the offender to actually be rehabilitated before there
can be any "justice" under California's "Three Strike" Law. 4
CONCLUSION
Under the current 'Three Strikes" law, defense attorneys must make
new alternatives in sentencing in order to sidestep the unjust law. It is virtu218. See David M. Kennedy, Pulling Levers: Chronic Offenders, High-Crime Settings,
and a Theory of Prevention, 31 VAL. U. L. REv. 449, 470 (1997); Thomson, supra note 211,
at 146-47.
219. See Wolpert, supra note 217. It should be noted that some prisons do incorporate
work and educational programs into the system. Unfortunately, the recidivists rate continues
to remain high because of the offenders association with other offenders. Additionally, sentencing defendants to long periods of incarceration does not prevent criminal behavior. This
occurs because young persons commit criminal acts. By incarcerating a person for a long period of time in prison only manages to "age out" the individual offender, but it does not alleviate crime because the young offenders continue to commit deviant acts. See id.
220. See John DiIulio, Jr., The Question of Black Crime, PuB. INTEREST, Sept. 1, 1994, at
3; Harvard Law Review Association, supra note 129 (stating improvements must be made in
education, housing, drug rehabilitation programs in order to prevent criminal behavior);
Olivo, supra note 122; Reinhart, supra note 175.
221. See generally NATIONAL INSTITUTE OF JUSTICE, U.S. DEP'T OF JusTIcE, THE
FRAGMENTATION OF SENTENCING IN AMERICA
1 (1999) [hereinafter
FRAGMENTATION OF
211, at 146-47 (stating drug and alcohol treatment must be implemented into these programs); Olivo, supranote 122.
SENTENCING]; see also Thomson, supra note
222. See Dilulio, supra note 220; Friedman, supra note 34, at 921 (stating California
spends more on incarceration than education); Austin, supra note 23, at 257. It costs over
$20,000 per offender per year to be incarcerated in California prisons. See id.
223. See generally FRAGMENTATION OF SENTENCING, supra note 221; Thomson, supra
note 211.
224. See Castellano, supra note 20, at 441.
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ally impossible for a defendant to reject an offer to stay out of prison when
faced with a long prison sentence. Defense attorneys must be willing to deviate from the standard practice of plea-bargaining, and reject all offers
unless the prosecutor incorporates rehabilitative programs into the defendant's sentence. Defendants do not realize that there are dire consequences
to pleading guilty to a first strike offense. Without programs designed to improve the offender's behavior, these individuals will continue to commit
crimes.2"
Defense attorneys must inform their clients of the future consequences
of pleading guilty without receiving rehabilitation. 6 Many defendants are
ignorant of the "Three Strikes" law. Allowing defendants to plea bargain
their first strike offense practically opens the door for additional criminal
behavior. Plea bargaining first strike offenses under California's 'Three
Strikes" law allows unrehabilitated defendants to reenter the criminal justice
system. Unfortunately, their return to the criminal justice system means they
will spend the majority of their life in prison. Without educational and work
programs that accomplish the goals of rehabilitating these offenders, there is
no reason to plea bargain just to get less prison time. It is up to the defendants themselves, with the help from their attorneys, to "see the writing on
the wall."" 7
Tina M. Olson*
225. See Mcallister & Bregman, supra note 65, at 105 (stating that in a majority of plea
negotiations, the prosecutor and the defense attorney ignore the defendant, although the defendant is the one who will suffer the consequences of the agreement).
226. See id.
227. Krikorian, supra note 1; see also McCallister & Bregman, supra note 65, at 105.
To James, with all my love. Thank you for your love, support, and belief in me because
without you, I would not be where I am today. You mean the world to me, and I will love
you forever. I also want to thank my loving daughter, Samantha, who is my guiding light and
inspiration for everything I do. I am so proud of you, and I want you to remember that as long
as you believe in yourself, nothing can stop you from reaching your goals.
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